United States Court of Appeals

Transcription

1 In the United States Court of Appeals For the Seventh Circuit No AWOK ANI-DENG, Plaintiff-Appellant, v. JEFFBOAT, LLC, Defendant-Appellee. Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 4:12-cv SEB-TAB Sarah Evans Barker, Judge. ARGUED JANUARY 7, 2015 DECIDED JANUARY 27, 2015 Before WOOD, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges. POSNER, Circuit Judge. The plaintiff filed a scattershot of discrimination and related claims against her former employer, Jeffboat (a division of American Commercial Lines), the nation s largest inland shipbuilder and second-largest manufacturer of barges. The district judge dismissed all the claims, some on the pleadings and the rest on summary judgment.

2 2 No A woman of Sudanese extraction, the plaintiff worked in Jeffboat s shipyard in Jeffersonville, Indiana as a welder from January 2006 until she was laid off in October She had been until late in her employment by Jeffboat a welder first class. Welders first class do the most difficult and dangerous welding jobs, such as overhead welding and welding in confined spaces. Welders second class do less demanding and safer welding jobs, and there are also welders third class, who do even less demanding jobs. In a twoweek period in June 2011, the plaintiff, who had on 12 previous occasions sought first aid for work-related injuries, experienced two more such incidents, becoming dizzy and nauseous while welding in confined spaces. At the end of the month Jeffboat demoted her to welder third class. (According to the collective bargaining agreement between Jeffboat and the union that represented the plaintiff, at the time the plaintiff was demoted a welder first class received $21.10 per hour while a welder third class received $15.69 per hour.) The plaintiff claims that the company demoted her in retaliation for her having complained to the EEOC the previous February that the company was discriminating against her because of her sex and national origin. She was laid off in October 2011, but the layoff was part of a general reduction in force based on seniority and in January 2012 the company notified her by certified mail that she was being recalled she hadn t enough seniority to avoid the reduction but she had enough to be among the laid-off workers who were recalled. The letter stated that if she wanted to return to work she had to notify the company by 3:30 p.m. on a date in January that was five working days after the letter was mailed. She failed to reply within the deadline. However, on 6:00 p.m. on that fifth day her hus-

3 No band called the company to report that his wife did want to return to work. But the company had closed for business at 3:30, so he was able only to leave a voic . Jeffboat is unionized and its collective bargaining agreement requires an employee, in order to secure his or her seniority, to report for work within five (5) working days after being notified by certified letter to report. The plaintiff s husband phoned the company on the fifth day, but because the call was made after the close of business that day no one in the company received timely notice. The company informed the plaintiff that she d missed the deadline and therefore would not be recalled; her employment with Jeffboat was over. The plaintiff never received the certified recall letter that noted the deadline, but only because, as she admitted, she had failed to apprise the company that she had moved and that therefore her address was no longer the address in the company s records. The union s chief steward and an employee of Jeffboat s human resources department twice phoned her to remind her of the deadline (though no such attempt to remind is required by the collective bargaining agreement), but they were unable to reach her either time. The chief steward called a third time, now using his personal cell phone, but still failed to reach her. The chief steward then tracked down the plaintiff s husband, another Jeffboat employee, on the shipyard premises, and told him of the deadline, but as we said he failed to comply. So far as appears, then, the plaintiff was demoted because of the company s safety concerns, which seem entirely legitimate given the dangerousness of the work and the incidence of safety violations, which have included deaths, see

4 4 No OSHA Regulation News Release, Feb. 16, 2012, ble=news_releases&p_id=21831 (visited Jan. 26, 2015); she was laid off as part of a general reduction in force; and she would have been recalled if only she d responded in time to the recall notice and there is no valid reason she couldn t have responded in time. She seems to think that notice would have been timely had she or her husband left a voic message with Jeffboat at one second before midnight on the fifth day. But that s wrong because the company would not have received meaningful timely notice. Neither did it receive such notice when the plaintiff s husband left a voic message two and a half hours after the office that received the message had closed. The only evidence of discrimination or retaliation against the plaintiff is an affidavit by Evelyn Miller, a former employee of Jeffboat who was still employed by the company when the plaintiff missed the recall deadline. In fact Miller was the other party to the abortive phone calls placed by the chief union steward. Miller s affidavit states that the company s labor relations manager would regularly manipulate the workforce, would review the seniority list for the different classes of jobs in order to find ways in which to terminate the employment of workers, and had searched for a way to terminate the employment of the plaintiff in stages, first by demoting her from welder first class to welder third class for too many First Aid Visits, which Miller calls unusual and not a real reason to demote a worker at Jeffboat, the real reason being the plaintiff s complaints about how she was treated as a woman, as an African and as a non- English speaker by those who had supervision over her work. The affidavit goes on to state that many white and

5 No male welders first class also went to First Aid because of overheating yet, they experienced no demotion or reclassification, and that anyway the overheating was Jeffboat s fault for failing to provide enough fans. And finally the affidavit asserts that the plaintiff was laid-off in violation of the CBA in retaliation to her complaint to the EEOC and other complaints. The affidavit was entitled to no weight, as it had no foundation. A [lay] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter, Fed. R. Evid. 602; United States v. Joy, 192 F.3d 761, 767 (7th Cir. 1999); Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, (7th Cir. 1991) (en banc), though personal knowledge can include inferences, id.; Gustovich v. AT&T Communications, Inc., 972 F.2d 845, (7th Cir. 1992) (per curiam) most of our personal knowledge is inferential. The affidavit itself could have contained the requisite evidence, since it is under oath. Had Miller s affidavit stated for example that she had overheard a company official say that he d get the plaintiff fired because she was foreign, the affidavit, or at least that part of it, would have been admissible. But without such first-hand evidence in the affidavit itself and there wasn t any Miller needed discovery to establish the admissibility of the assertions in the affidavit. The plaintiff s lawyer inexcusably failed to conduct the necessary discovery. His discovery requests for pertinent company records missed the district court s discovery deadline. If it s true as Miller s affidavit states that the plaintiff s numerous First Aid Visits were attributable to the company s failure to provide enough fans, one would expect complaints to have

6 6 No been made by the welders to the union and by the union to OSHA. Discovery would have revealed such complaints. The statement in the affidavit that too many First Aid Visits are not a real reason why a welder is demoted is hardly credible, since a high accident rate would get Jeffboat into trouble with OSHA; but in any event the affidavit does not indicate how a human resources officer would know the real reason for demotion of a welder with injury problems. The affidavit fails also to indicate what basis the affiant had for thinking that white welders and male welders (white or black?) who made many First Aid Visits because of overheating were not punished by being demoted, or how the affiant learned that the company s labor relations manager was trying to fire the plaintiff in stages did he tell the affiant that? Did she overhear him tell someone else? There is no evidence to suggest that Miller had personal knowledge of the manager s supposed scheming. As for the charge that the plaintiff s supervisors mistreated her because of her sex, African origin, and language difficulties, Miller s affidavit should have named the alleged miscreants or at least provided some basis for identifying them. And contrary to another assertion in Miller s affidavit, it is apparent that the plaintiff does speak English, albeit not as well as a native English speaker. The chief union steward and Miller would have spoken to her in English had they reached her on the phone, and even her lawyer at oral argument acknowledged that she speaks limited English. Although her first deposition was conducted through an interpreter, confirming that she has difficulty with English, at her second deposition she appears to have understood most

7 No of the questions, which were in English, though at times she relied on an interpreter. Without the affidavit, the plaintiff had nothing. The district judge was therefore on sound ground in dismissing her suit. AFFIRMED.

In the United States Court of Appeals For the Seventh Circuit No. 14 1449 BASHIR SHEIKH, Plaintiff Appellant, v. GRANT REGIONAL HEALTH CENTER, Defendant Appellee. Appeal from the United States District

In the United States Court of Appeals For the Seventh Circuit No. 15-1328 NEAL D. SECREASE, JR., v. Plaintiff-Appellant, THE WESTERN & SOUTHERN LIFE INSURANCE COMPANY, et al., Defendants-Appellees. Appeal

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted June 18, 2015 * Decided July

In the United States Court of Appeals No. 13-1186 For the Seventh Circuit IN RE: JAMES G. HERMAN, Debtor-Appellee. APPEAL OF: JOHN P. MILLER Appeal from the United States District Court for the Northern

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA. v. MEAD JOHNSON & COMPANY et al Doc. 324 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA EVANSVILLE DIVISION NATIONAL UNION FIRE INSURANCE

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DONALD LYLE STRATTON, Plaintiff-Appellant, v. JULIE BUCK, in her individual capacity; DALE BROWN, in his individual capacity; JOHN DOE,

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA EVELYN THOMAS v. COMMUNITY COLLEGE OF PHILADELPHIA CIVIL ACTION NO. 06-5372 MEMORANDUM AND ORDER Kauffman, J. April 18, 2008

Opinion issued April 19, 2016 In The Court of Appeals For The First District of Texas NO. 01-15-00361-CV FREDDIE L. WALKER, Appellant V. RISSIE OWENS, PRESIDING OFFICER OF THE TEXAS BOARD OF PARDONS AND

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE GIAN BIOLOGICS, LLC, Plaintiff, v. Civil Action No. 10-865-LPS BIOMET INC. and BIOMET BIOLOGICS, LLC, Defendants. MEMORANDUM ORDER At Wilmington

In the United States Court of Appeals For the Seventh Circuit No. 13 2018 PATRICIA BANKS, Plaintiff Appellant, v. CHICAGO BOARD OF EDUCATION and FLORENCE GONZALES, Defendants Appellees. Appeal from the

Pursuant to Ind.Appellate Rule 65(D, this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued January 8, 2008 Decided July 23,

Case: 10-60762 Document: 00511435084 Page: 1 Date Filed: 04/05/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit F I L E D April 5, 2011 Summary

2015 IL App (1st) 150941-U SIXTH DIVISION December 18, 2015 No. 1-15-0941 NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances

In the United States Court of Appeals No. 12-3901 For the Seventh Circuit CINDY GOLDEN, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee. Appeal from the United

NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued October 29, 2014 Decided February

INFORMATION ABOUT FILING A WHISTLEBLOWER OR RETALIATION COMPLAINT WITH OSHA FOR ALL EMPLOYEES: OSHA administers the whistleblower protection provisions of more than twenty whistleblower protection statutes,

Page 1 of 9 Guide to Small Claims Court 1. Introduction 2. What is Small Claims Court? 3. Who Can Sue and What Can You Sue About? 4. Before You Sue 5. When Must a Lawyer Represent Me in Small Claims? 6.

2015 IL App (1st) 141985-U No. 1-14-1985 NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

NOTICE Decision filed 10/15/15. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same. 2015 IL App (5th 140227-U NO. 5-14-0227

Wendy Musell Stewart & Musell, LLP In 2011, the federal government is the Nation's largest employer with about 2.0 million civilian employees. 600,000 employees approximately in the US Postal Service Laws

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION RAY BRUNSON AND MARY BRUNSON, Plaintiffs, vs. No. 07-2320-MaV STATE FARM FIRE AND CASUALTY, COMPANY, Defendant.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 03-40540 United States Court of Appeals Fifth Circuit FILED October 8, 2003 Charles R. Fulbruge III Clerk Mary Pena, Plaintiff/Appellant,

Case: 15-10426 Document: 00513359912 Page: 1 Date Filed: 01/28/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT CYNTHIA TREVINO GARZA, Summary Calendar United States Court of Appeals Fifth

Case: 13-10715 Document: 00512555766 Page: 1 Date Filed: 03/10/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT REINALDO J. TAYLOR, United States Court of Appeals Fifth Circuit FILED March

February 2009 Dear Union Friend: Yaeger, Jungbauer and Barczak has just learned that the U.S. Government has awarded damages against the UP RR in a federal whistleblower case in which our client claimed

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA PIOTR NOWAK : CIVIL ACTION : v. : : MAJOR LEAGUE SOCCER, LLC, : et al. : NO. 14-3503 MEMORANDUM McLaughlin, J. February 4, 2015

Recover Your Unpaid Wages With the California Labor Commissioner s Office The Labor Commissioner s Office, also called the Division of Labor Standards Enforcement (DLSE), is a part of the California Department

MI: RELEASE OF FORMER FF S PERSONNEL FILE TO PRESS NEGATIVE STORY - RETALIATION LAWSUIT REINSTATED On March 13, 2014, in Mark Laster v. City of Kalamazoo, et al, the U.S. Court of Appeals for 6 th Circuit

Case 1:13-cv-00046-CCE-LPA Document 24 Filed 01/06/14 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA EQUAL EMPLOYMENT OPPORTUNITY ) COMMISSION, ) ) Plaintiff,

United States Court of Appeals FOR THE EIGHTH CIRCUIT No. 01-2297 Ronnie D. Gosney, * * Plaintiff - Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas.

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION 1:07cv257 MARVIN EDWARD ELLIS, ) ) Plaintiff, ) ) Vs. ) MEMORANDUM AND ) RECOMMENDATION MARGARET SPELLINGS,

Using Section 11(c) of the Occupational Safety and Health Act (OSHA) Protecting Workers Who Exercise Rights PWWER A PROJECT OF THE NATIONAL Committees for Occupational Safety and Health NETWORK FACTSHEET

Case 1:14-cv-00873-JLK Document 60 Filed 07/20/15 USDC Colorado Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 1:14-cv-00873-JLK DEBORAH CARTER, v. Plaintiff,

National Council for Occupational Safety and Health Leading the Fight for Safe and Healthy Workplaces! www.coshnetwork.org Workplace Safety Dialogues for use in English as a Second Language classes Dialogue

RONALD WARRUM, in his capacity as Personal Representative of the Estate of JOSEPH F. SAYYAH, Deceased, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee. No. 04-3753 UNITED STATES COURT

Case: 14-50895 Document: 00513153752 Page: 1 Date Filed: 08/13/2015 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED August 13, 2015 ANA GARCIA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT CRISTOBAL COLON, Appellant, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED v. Case No.

Case :09-cv-00910-FB Document Filed 10/0/10 Page 1 of UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION CARL DWIGHT DAVIS, Plaintiff, v. CIVIL ACTION NO. SA-09-CA-910-FB

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. JOHN MACARTNEY, v. Plaintiff-Appellant, NEW JERSEY TRANSIT RAIL OPERATIONS,

Case: 09-30299 Document: 0051998279 Page: 1 Date Filed: 01/07/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit F I L E D January 7, 2010 Summary

ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): TELEPHONE NO.: FAX NO. (Optional): E-MAIL ADDRESS (Optional): ATTORNEY FOR (Name): SUPERIOR COURT OF CALIFORNIA, COUNTY OF SHORT

TIPS FOR RESPONDING TO EEOC COMPLAINTS PRESENTED BY: RICHARD D. ALANIZ ERA OF ACTIVE ENFORCEMENT Over the last several years, government agencies that regulate the workplace have been in a mode of aggressive

Case 5:15-cv-00324-C Document 34 Filed 07/10/15 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA UNITED STATES OF AMERICA and DR. RACHEL TUDOR, Plaintiffs, v. Case No.

No. 2-14-1168 Order filed October 15, 2015 NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule

M.R. 3140 IN THE SUPREME COURT OF THE STATE OF ILLINOIS Order entered February 16, 2011. (Deleted material is struck through and new material is underscored.) Effective immediately, Supreme Court Rules

SECOND DIVISION September 28, 2007 No. 1-06-2949 SHELDON WERNIKOFF, Individually and on Behalf of a Class of Similarly Situated Individuals, v. Plaintiff-Appellant, HEALTH CARE SERVICE CORPORATION, a Mutual